Is America’s Election System Rigged?

The short answer is yes. It’s probably not possible to have a rig-free system. But some systems do better than others. And some sorts of rigging may enhance fairness. (Here’s a long one, folks, and it’s not long enough!)

The question of rigged elections is perennial. Like perennial wildflower, the question is often beautiful. But like perennial weeds, the question is often invasive and destructive.

This cycle, the two biggest complainers about rigged elections were Donald Trump and Bernie Sanders. One of the two (the Donald) was also one of the biggest beneficiaries of rigging. Bernie’s story is a little more mixed.

Rigging happens because it is impossible to get an image of the “will of the people” that is valid in all times and circumstances. We take shortcuts. We have slates of candidates that limit our choices. We have jurisdictional boundaries. Elections occur on specific days and the candidates elected continue to serve for two or four or six years before a new election occurs.

So, how, specifically are American elections rigged? And how can they be fixed? And should they be fixed?

Not all rigging comes from the malevolent hearts of the Koch brothers. Some of the rigging comes from James Madison and the framers of the Constitution.

The biggest rigging is built into the composition of the US Senate. Small states are wildly over-represented. Large states are wildly under represented. The largest state, California (with nearly 40 million people) has 2 senators. The smallest state Wyoming (with just over ½ a million) has two senators. A citizen of Wyoming has approximately 80 times the clout of a citizen of California.

Regionally, this unfairness tends to favor the non-Florida south and the non-California west, rural over urban. You may think that this is a good idea or you may think this is a bad idea. The demographics are entirely different today, however, than when this system was put into place. At the time, the big state was Virginia and the little state was Delaware. Wyoming wasn’t heard of and California was part of Mexico. The one constant, however, was that the south has always been mostly small rural states and so has always been over-represented.

This system was built into the constitution as a counterpart to the more proportional representation in the House. This was the “Great Compromise” that made the Constitution possible. And thus was born our bicameral legislature of a House and a Senate.

Legislatures are debating societies. We could afford to have two with different election rules. And we could even get a conservative sort of benefit from it if you think that slowing down the work of the government is a good idea. The framers of the Constitution did think it was a good idea, so that’s what we have. Getting rid of this unfairness would require a constitutional amendment. It ain’t gonna happen. Some folks, knowing the impossibility of amending this part of the Constitution have proposed breaking the largest state (California) into smaller states in order to get a few more senators. This, too, is going nowhere.

While legislatures are debating societies, executives are doers. You can only have one (though this idea is undermined by federalism). Our Constitution therefore created a hybrid system known as the Electoral College. The number of electors assigned to each state is the total of the number of representatives and senators. California has 53 representatives and 2 senators, so it has 55 electoral votes. Wyoming has 1 representative and 2 senators, so it has 3 electoral votes. Comparing this to their population, we find that a Wyoming resident has approximately 4.5 times the clout in the Electoral College as a California resident. This is definitely unbalanced, but not nearly as bad as the 80:1 imbalance in the Senate. As with the Senate, the Electoral College favors the non-California west and the non-Florida south.

Eliminating the Electoral College would take a Constitutional amendment. This is unlikely, but probably not as unlikely as deconstructing the Senate. Some folks have proposed a short-cut fix to the Electoral College rule: elimination of the “unit rule” in Electoral College voting. Right now, nearly all states cast their Electoral College votes as a unit. If the Dems get 51% of the vote in California, the presidential candidate gets all 55 electoral votes. Eliminating the unit rule would result in the Dem candidate getting something like 28 of the California electoral votes and the Rep candidate getting 27.

This seems like a fair idea, but unit rule is determined at the state level, so a big state like California would lose its already disproportionately small clout if it abandoned unit rule while other states did not. Abandoning unit rule has to occur on a national level or it won’t occur at all. Legislation has been proposed that would be in the nature of an interstate compact, in which each state votes to eliminate unit rule contingent on the others doing so and delaying the effective date until all the states sign on. This is too complicated and probably less likely than a constitutional amendment for that reason. And eliminating unit rule would do nothing to balance representation between large and small states.

The House is based on proportional representation, so I don’t have much to say about that, except that each state legislature is allowed to set the boundaries for congressional districts. Traditionally, these boundaries have been set to minimize fairness by promoting election of the party in power in the states. This is called gerrymandering. Some states have been working to reduce gerrymandering by giving the power to redistrict to nonpartisan commissions. The Supreme Court recently said that these commissions are a fine (and constitutional) idea (in a unanimous decision by a normally divided court in Harris v. Arizona Independent Redistricting Commission). But this decision is a far cry from requiring states to be fair in redistricting.

So that’s the rigging that is hard-wired into our Constitution. During my lifetime, constitutional election rigging has generally benefitted the Republicans, but different demographics could have different results.

Another sort of rigging is non-constitution, but is still based on governmental rules. These are the laws of each state that say who gets to vote and when. These laws are manipulated to make it easier or harder for different groups of people to vote. Requiring voting to occur during a working day makes it harder for hourly employees to vote. Requiring voter ID makes it harder for people without drivers licenses (mainly poor and elderly) to vote. Refusing to give back the vote to convicts who have completed their sentences. And so on.

Proponents of these measures say that they are trying to stamp out voter fraud. But voter fraud is relatively rare.

Rare but not nonexistent. I personally witnessed a case of vote tampering many years ago when I was a poll watcher. I had gone to the bathroom and when I returned I saw a ward worker coming out of a voting booth where he was “helping” a voter vote. This was the day before cell phones and I noticed that the guy stayed away when I was present. So I couldn’t go looking for a phone booth. I just had to forego my bathroom breaks for the rest of the day!

But this is an anecdote. Statistics say this is rare—and most certainly far less corrosive of fairness in our elections than voter disenfranchisement, gerrymandering, or constitutional imbalance.

And then there is money in politics. This is mostly what Bernie has been talking about (Trump, too, but his protests were bullshit, considering how he benefitted by the system).

Money works two ways in politics. Money goes to people already in office to influence their votes on legislation. This is legalized bribery. This money has nothing to do with the “fairness” of our election system directly, except in how it induces legislatures to maintain and enhance unfairness in elections.

The second way money works in politics is to pay for campaigns of people running for office. Sometimes this is in the form of contributions to campaigns. Sometimes it is in the form of contributions to issues-campaigns that are (wink-wink) independent of candidates. Sometimes it is in the form of free publicity.

Donald Trump was the biggest beneficiary of free publicity in the history of the republic. Overturning Citizens United would do nothing to change this.

Fox, CNN, MSNBC, CBS, and ABC all gave tons of free publicity to Trump. They never asked him a hardball question. They literally allowed him to phone it in. Ask Bernie Sanders if he ever got anything remotely like the treatment Trump got. Ask Trump’s Republican opponents. Ask Hillary! No one got anything like the free campaign support that the Donald got.

This used to be illegal. We used to have an “equal time” rule in broadcasting. But that was abandoned in the 1990s because cable and the Internet were going to be the great equalizers. Well, it didn’t happen. Multi-billion dollar media giants can still rig elections. They may do it to advance a political agenda. Or they may simply do it because conflict and bizarre behavior get ratings.

You may think this is a good thing. But it’s still rigging.

I’ve written a lot today. And I could go on and on. But I’ll leave you with one last thing: the question of whether “superdelegates” in a nominating convention constitute rigging.

To me, the difference between a regular delegate and a superdelegate is that regular delegates were elected today and superdelegates were elected in a prior cycle. The rules of the Democratic party allows people who were elected to office in the last cycle to vote for the nominee. The suggestion that these people were not elected is false. It’s just that they weren’t elected in the current cycle.

Should they not get to vote? Should their vote count less?

This is really the same question as whether President Obama should still be entitled to nominate a candidate for the Supreme Court on the ground that his term is nearly over (but not over). We elected people for fixed terms of office, presuming that they will continue to do their jobs until their terms are over.

Part of a superdelegate’s job, when they are elected, is to vote in the next nominating convention. Is it rigging to let them do the job they were elected to do? Yes. It gives a voice to the past. But is giving a voice to the past a bad idea?